Monday, July 18, 2012 Update: Megyn Kelly provided a clarification on this story, saying, “We identified and discussed the aircraft as being unmanned drones. In fact, the EPA is flying these missions and taking pictures from manned aircraft. We apologize for the confusion.”

The EPA is using drones to spy on cattle ranchers in Nebraska and Iowa in order to make sure that farmers dispose of waste properly. On Fox Business Network’s Varney & Co., Judge Andrew Napolitano said that as shocking as this news is, an opinion by the Supreme Court says that as long as the EPA is using the drones for an administrative purpose, it doesn’t need a warrant in order to do this. “If this is a legitimate area of concern for the EPA, the Supreme Court has said they can use the drones,” said Napolitano.

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Judge Napolitano wrote this exclusive commentary on the topic for the Fox News Insider.

The government may lawfully use technology, just like the rest of us, to make its work more efficient. But it cannot use technology to by-pass the Constitution.

Thus, if its lawful obligation is to monitor real estate to assure itself that the occupier of the lands is not adversely affecting the natural habitat, it may use drones to view the lands. But, generally speaking, that is not the job of the EPA. It sets rules for the use of private property that assures its highest and best use, consistent with nature. It can only monitor that use when it has evidence of a specific violation of that use. Thus, it can only fly drones to look at real estate when it has reason to believe that a specific regulation, directed to the owner or occupier of that land, is being violated. It cannot engage in fishing expeditions from the sky.

The constitutional problem arises when the drone spies some event outside the jurisdiction of the EPA. And much of what the drones will see will be outside that jurisdiction and either innocent or ambiguous. Is that Sudafed for your cold or your meth habit? Is that fertilizer for your rose bushes or to build a bomb? Are you smoking in the presence of your children? How utterly un-American is it for the government--EPA or FBI--to watch us on our private property? These are questions that will come up when the feds put eyes in the skies under the guise of monitoring EPA regulations.

That’s why we have a Fourth Amendment. It guarantees privacy and assures us the right to be left alone. It also requires a warrant from a judge to invade privacy. True fidelity to the Constitution requires a warrant from a judge before any government drone can be used for any purpose. But that is not yet the current practice.

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Watch the report from Varney & Co.:


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Plus, on Happening Now, the judge further tackled the issue of drones and their potential use in the US by both local governments and the federal government for homeland security purposes.

He put the issue in context, saying, “Here’s what the American people need to realize — that we will soon have to decide whether we want to give up privacy, give up freedom for security. Whether we want to live in a society where the government watches us all the time, and even whether that watching makes us any safer.”

He detailed the current state of drones in the US saying that 313 local police departments, including the city of New York, own drones and have filed applications for permission to fly them. The Air Force has predicted that within 10 years, there will be between 10,000 and 30,000 drones in the air at any given time.

Watch the Happening Now video here: